As the Supreme Court considers a harassment case that challenges
the definition of "supervisor," experts say HR leaders would be wise
to revisit discrimination and harassment policies, provide and document the
appropriate training for all employees, and offer multiple, clear-cut avenues
for reporting complaints.

By Mark McGraw

Wednesday, January 2, 2013

As HREOnline recently reported, the current Supreme
Court docket includes a handful of cases that employers and HR leaders should
be keeping their eyes on.

Count Vance
v. Ball State University among them. The Court's decision in this bias and
harassment case -- expected in June 2013 -- could leave employers open to
greater liability for a larger number of workers in discrimination and
harassment lawsuits.

Under
current law, employers are liable for a supervisor's discriminatory or
harassing behavior aimed at a subordinate based on his or her race, religion,
sex or age. The organization is not at fault, however, if one worker exhibits
the same type of behavior toward a co-worker -- unless of course such conduct was
reported and the employer failed to act upon said report.

The Vance
case, however, calls into question how exactly a supervisor is defined. In her
complaint, Maetta Vance, an African-American food-service worker at Ball State
University in Muncie, Ind., alleges her white co-workers directed racial
epithets at her, referred to connections with the Ku Klux Klan in her presence and
made veiled threats of physical harm.

Vance
also claimed that Saundra Davis -- a white catering specialist whom Vance identified
as her supervisor -- had slapped her and referred to her as "Sambo"
and "Buckwheat."

Vance eventually
filed bias and harassment charges against the university. A federal judge ruled
against her, and the U.S. 7th Circuit Court of Appeals in Chicago dismissed the
suit, finding that Davis -- who didn't have the authority to hire, fire, demote
or discipline Vance -- didn't fit the definition of a supervisor. Hence, the
university couldn't be held liable.

The
highest court in the land, however, will now determine whether Davis -- who
wasn't technically Vance's supervisor but did provide her with a daily list of
work-related tasks -- should be considered her boss.

Whatever
the Supreme Court decides is likely to "alter the legal landscape
throughout the United States," as different courts rely on different tests
to define what constitutes a supervisor, according to Ron Chapman Jr., a
Dallas-based labor and employment attorney with Ogletree, Deakins, Nash, Smoak
& Stewart.

"That
means someone who is currently considered a supervisor in one part of the
country would not necessarily be considered a supervisor in other parts of the
country," says Chapman. "If the Court establishes a definition of
supervisor that's broader than the one currently being used in a given part of
the country, employers there will face enhanced liability exposure, because
they will potentially be on the hook for the actions of a larger group of
individuals -- those considered supervisors under the new standard."

Should
the Supreme Court go that route, expect employers and HR to place more emphasis
on training related to acceptable and unacceptable workplace behavior, and
provide that training to a broader range of employees, he says.

"Currently,
some employers train only supervisors on certain issues or have enhanced
training requirements for supervisors as compared to non-supervisors. If the
pool of 'supervisors' grows as a result of the Supreme Court's ruling, then
that means more employees will receive the enhanced training."

Ultimately,
though, a "new standard" closer to the EEOC's proposed definition of
supervisor -- an individual with the authority to recommend tangible employment
decisions affecting the employee or to direct the employee's daily work
activities -- isn't likely to emerge from this case, he says.

"Historically,
this Supreme Court has established tests based on the 'totality of the
circumstances,' meaning every situation must be analyzed based on all the facts
at issue. I could see the Court adopting a test that finds a person is a
supervisor if he or she actually exerts significant control over an employee's
terms and conditions of employment, considering all the circumstances. That is
a more limited definition than what the EEOC wants."

The
problem with 'totality of the circumstances' tests, however, is they "don't
provide much guidance to employers that have to operate in the real world on a
daily basis and make judgment calls on the spot," says Chapman Jr. At oral
argument, he adds, Chief Justice Roberts "was clearly advocating for a
bright line test, which would give employers greater guidance, so maybe the
Court will offer employers some clear relief going forward."

Lori
Adelson, a Ft. Lauderdale, Fla.-based partner with Arnstein & Lehr, and a
member of the firm's labor and employment practice group, is "not inclined
to venture a guess" whether the Supreme Court will ultimately agree with
the EEOC's definition of supervisor.

Newsletter Sign-Up:

She
does note, however, that "this Court is starting to lean toward being more
expansive when it comes to employee rights. This case is concerning for
employers, because if the Court does adopt the EEOC's definition, it will make
employee harassment claims easier to file such that it would increase the
number of employees who are considered supervisors, and companies would be
susceptible to many more harassment claims under Title VII. In addition, the
standard the employer must overcome will be much higher."

However
the Court rules, though, the case should spur employers and HR to revisit harassment
and discrimination policies, and training programs, says Adelson.

"HR
policies and training are always the best defense to avoid liability for the
actions of an employee with control over the daily work activities of another
employee," she says. "Employers should have a policy that prohibits
discrimination and harassment, and provides training to both supervisors and
even employees who are not technically supervisors."

Of
course, such training should be well-documented, adds Frank Chernak, partner
and labor and employment attorney in the Philadelphia office of Ballard Spahr.

"Your
people must acknowledge they've received the training," he says. "Document
the lesson plan and the amount of time spent on training. Have employees sign
off on it, and make sure they attest they are complying with your policy."

To
encourage employees to step forward -- as well as to protect the organization
from potential liability -- policies should make the reporting process crystal
clear for all employees as well, continues Chernak.

"Oftentimes,
we see policies written that just instruct employees to report harassment or
discrimination to a supervisor. And, an employee says they told this or that
person, and you get a case where the employer doesn't even know about a hostile
work environment," he says.

"Policies
should identify who exactly an employee should report to -- the director of human
resources, for example. And, give employees a few avenues to report, rather
than having a policy that simply encourages employees to report this type of
conduct to any supervisor."